Justice Watch: The Alliance for Justice Blog

May 2016

With the Senate Republicans’ unprecedented obstruction of Merrick Garland’s nomination and a trio of current justices soon to be or already over age 80, the future of the Supreme Court is central to this year’s election. But the focus on the Supreme Court overshadows the election’s larger meaning for the courts. No matter who the next president is, he or she will have also a significant impact on the makeup of the federal judiciary by appointing judges to the lower courts. In this post, we predict how significant that impact will be. By looking at how the circuit courts have changed in the recent past, combined with how many judges are eligible to retire in the coming years, we get a relatively clear picture of how the next two presidential elections will affect the circuit courts’ composition.

Because the Supreme Court hears only around 80 cases each year, the circuit courts, which on the whole decide over 30,000 cases per year, often render the final word on important questions of federal and constitutional law. This is all the more true with an eight-member Supreme Court that can deadlock without resolving even the small number of cases it does hear. That happened with the latest challenge to the Affordable Care Act’s contraception mandate, which the Court recently remanded to various courts of appeals without addressing the merits. And with just months to go, circuit courts will decide whether the November elections will be held under the cloud of discriminatory voter ID laws and other voting restrictions. The upshot is clear: when it comes to decisions that profoundly impact our daily lives, the Supreme Court isn’t the only game in town. Read more

An extraordinary idea surfaced at the Senate Judiciary Committee’s weekly business meeting last Thursday. Senator Diane Feinstein, a member of the committee since 1993, proposed that senators stop debating the meaning of the so-called Thurmond Rule—which we’ve previously described as “a figment of the partisan imagination invoked to give an air of legitimacy to . . . pure obstruction”—and that instead members of the committee “just sit down and do our job” to fairly consider and process judicial nominees.

Feinstein’s proposal may sound unremarkable to hardworking Americans who do their jobs every day without fanfare or prodding, but for this Republican-led Senate the idea of doing actual work feels revolutionary. Since the Republicans took over in 2015, the Senate has confirmed a paltry 18 judges, putting it on pace for the fewest judicial confirmations in more than a half-century. Only two of the 18 confirmed are circuit court judges, a number that, if it holds, would be the lowest since the 55th congress in 1897-1898. And in the Judiciary Committee, Chairman Chuck Grassley is refusing to hold a confirmation hearing for a Supreme Court nominee who has already been pending for 70 days, to say nothing of the 29 lower court nominees who still need a hearing. Read more

The Senate Republicans’ refusal to consider Supreme Court nominee Merrick Garland has forced the country into a perilous state of legal uncertainty. One of the Supreme Court’s most important duties is to ensure nationwide uniformity and consistency on important questions of federal law, including the meaning and scope of constitutional rights. When circuit courts reach conflicting conclusions about the law—generating a “circuit split”—the Supreme Court is often quick to step in, providing clarity with a definitive interpretation.

But with only eight justices, the Supreme Court can find itself deadlocked in a four-four tie. By rule, a tie vote affirms the lower court that heard the case before it was appealed to the Supreme Court. But unlike a decision where a majority of the voting justices set a binding, nationwide precedent, a tie leaves the disputed legal question unresolved, as if the Court never heard the case at all. That means that people who live in circuits that have yet to decide the issue don’t know what the law is, and elsewhere the same law has different meanings based solely on geography. Read more

There’s no denying that the current Supreme Court is closely divided on some of the most important legal questions it faces. Before Justice Scalia’s death in February, that division manifested itself in 5-4 decisions, usually with the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) dissenting from the conservative justices’ (Roberts, Scalia, Kennedy, Thomas, and Alito) position in cases dealing with issues such as class actions, voting rights, and the death penalty.

Now with Justice Scalia absent and Senate Republicans refusing to replace him, the Court is left in a perilous state of dysfunction. Without a fifth vote to break a tie on contentious issues, the justices can end up deadlocked and unable to answer legal questions that are dividing courts across the country. That usually means issuing a passive per curiam opinion “by an equally divided Court” that simply affirms the lower court and resolves nothing. Read more